HEO (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 457 (Temporary Work (Skilled)) visa granted to the applicant, HEO. The dispute arose because the applicant had ceased employment with her sponsoring company, Sushi Revolution Pty Ltd, for over 90 days, and the sponsor company was voluntarily wound up by ASIC. The applicant contended that she was unaware of the company's restructuring and believed she was still employed by Sushi Revolution, which continued its business operations.

The Tribunal was required to determine whether the grounds for visa cancellation under s 116 of the Migration Act 1958 (Cth) were met, specifically concerning the applicant's cessation of employment with the sponsor for more than 90 days. It also had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances, including the applicant's submissions and information from the Department's Procedures Advice Manual.

The Tribunal found that while the ground for cancellation was made out, it ultimately decided not to cancel the visa. It reasoned that the applicant had been unaware of the sponsor's liquidation and genuinely believed she was still employed by Sushi Revolution, which continued to operate. The Tribunal considered the applicant's purpose for being in Australia, her compliance with other visa conditions, and the potential hardship cancellation might cause. Weighing these factors, particularly the applicant's lack of knowledge regarding the sponsor's status and the continuation of the business operations, the Tribunal concluded that it was appropriate to set aside the cancellation decision.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa.